We mused recently about (and tried to clarify) the possible tension between the Detroit Institute of Arts’ successful scuttling of any plans to consider selling its collection to satisfy the city’s debts in the Detroit Bankruptcy.  The purpose of the post was not guileful: it seemed likely that many readers might be confused about how Detroit could propose to sell artwork when so much coverage had been addressed to the idea of not selling artwork.  In fact, the two ideas are entirely consistent with the consensus of museum governance ethics, but we thought it was an occasion to prompt discussion about the policy behind those ethical guidelines.  After all, apart from New York, the rules of deaccessioning are not actually law, they are enforced essentially through collective opprobrium.  To facilate that discussion, I quoted Donn Zaretsky, a prominent critic of the status quo, for readers to consider on the one hand, against the guidelines themselves on the other hand.

This effort prompted a response to the Art Law Report from DIA itself.  Director Graham W.J. Beal wrote to me:

I have just read your piece commenting on our intention to deaccession an early Van Gogh and asserting that I had categorically stated that we should  not deaccession for any reason.  I am as certain as I can be of anything that I have never made such a statement.  In fact, I was careful throughout to say that we could not deaccession for any other reason than to by art.  We stopped deaccessioning art for sale because we knew that this would send a confusing message to some of our public and possibly give the emergency manager’s team material that could be used to muddy the water.  If you have a source for “my” assertion that deaccessioning should never be done for any reason, please let me know because I would like to set the record straight.  Also, if you read the AG’s opinion carefully, he states that art cannot be sold to satisfy debt and nowhere equates public trust with a total ban on deaccessioning. 

It’s now clear that this confusion stems from a paraphrase (but not a quote) in Randy Kennedy’s December 4, 2013 New York Times article, which stated, “The museum’s director, Graham W. J. Beal, has said that any sale of art will most likely lead to the museum’s dissolution; donors would stop giving, and the museum will lose a crucial tax stream established last year by surrounding counties to provide the museum with badly needed operating revenue.”  The article makes no qualification about sales of art, but Mr. Beal is quite clear that he drew that line.  As for the Michigan Attorney General’s opinion, I understand perfectly well its sentiments about whether the art could be sold, but at the end of the day it was no more than the AG’s opinion; it was never tested or incorporated into a holding or judgment of the Bankruptcy Court.

Director Beal continued:

One added factor: the van Gogh in question has never been accessioned into the museum’s collection.  A notation in the donor’s file states that the works of art she gave were to be sold and the proceeds used to buy “Classic Modern art.”  This happened with a Chagall piece in 1990/1 in the bequest but the van Gogh became unsaleable when an expert questioned its authenticity.  We – and others – are now convinced that particular expert was wrong and we have traced back its provenance to a private collection at a time when no one was forging early Paris period van Goghs.

This makes another important distinction (and one available under New York law as well).  To de-accession something, the museum has to have accessioned it in the first place.  The conditions of the gift, it appears, essentially make possession of the painting conditional and only for the purpose of sale to buy more art.  In that respect, the Van Gogh is not a deaccessioning at all.

The balance between museums’ mission, their relationship to the public, and their very survival prompts strong feelings.  We hope the discussion continues to help strike that balance well.